Succession in Queensland: wills, intestacy and family provision 

Succession law decides what happens to a person's property when they die. Before asking who inherits, a student must ask a prior question: which jurisdiction's law applies? There is no Australian law of succession — each State and Territory legislates for itself, and the answer to almost every question below changes with the border. This article states the Queensland position under the Succession Act 1981 (Qld).

Why the jurisdiction has to be settled first

Queensland's rules sit in the Succession Act 1981 (Qld)¹. Every other State and Territory has its own principal Act, and the differences are not cosmetic: formal requirements, intestacy entitlements, who may bring a family provision claim and how long they have all vary.

Two disciplines follow. Never carry a section number across a border — a provision cited from the Queensland Act says nothing about the position in Victoria. And because succession legislation is amended regularly, check the compiled version in force at the relevant date rather than relying on the year in the short title.

Making a valid will

Section 10 sets out how a will must be executed. It must be in writing and signed either by the testator or by someone else in the testator's presence and at their direction. The signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and at least two of those witnesses must attest and sign in the testator's presence — though not necessarily in the presence of each other.

Three points are commonly missed. The witnesses need not know the document is a will; the signature need not appear at the foot of it; and the testator's signature must be made with the intention of executing the will, so one placed for another purpose will not do.

Capacity has a statutory floor as well as a common-law content. Under section 9 a will made by a minor is not valid, subject to exceptions for a will made in contemplation of marriage, a minor who is married, and a minor whose marriage has ended.

When the formalities are not met

Failure to comply with section 10 is not necessarily fatal. Section 18 gives the court a dispensing power: where a document purports to state the testamentary intentions of a deceased person but has not been executed under the Part, it forms a will if the court is satisfied that the person intended the document to form their will. In deciding, the court may consider evidence of how the document was executed and evidence of the person's testamentary intentions.

The power is curative, not an alternative route to making a will. The question is one of proved intention, and the burden sits on the party asserting it, so a document that is informal and equivocal about intention will fail.

Section 33 addresses a narrower problem: where a will does not carry out the testator's intentions because of a clerical error, or because it does not give effect to instructions, the court may rectify it. An application must be made within six months of the death, though the court may extend that time where the estate has not been finally distributed.

Marriage, divorce and the will nobody revisited

Two life events operate on a will by force of statute. Under section 14, marriage revokes a will — subject to exceptions preserving a disposition to the person the testator is married to at death, that person's appointment as executor, trustee or guardian, and certain powers of appointment. Under section 15, divorce or annulment revokes a disposition to the former spouse, their appointment as executor, trustee or guardian, and a power of appointment exercisable by or in favour of them.

The practical trap is a client who marries or divorces and never revisits an existing will. The document sitting in the drawer may no longer say what they believe it says.

When there is no valid will

If there is no valid will, or a will disposes of only part of the estate, the intestacy rules apply. Section 35 provides that the persons entitled to the residuary estate, and the interests they take, are ascertained by reference to Schedule 2 according to the facts existing in relation to the intestate. Schedule 2 is where the entitlements themselves are set out, and it should be read directly rather than recalled.

Where more than one spouse is entitled, section 36 supplies a mechanism: a written distribution agreement, a distribution order of the court, or — in defined circumstances and after notice — equal shares determined by the personal representative.

Family provision: a valid will is not the end of the question

This is the step students most often stop short of. Under section 41, where a person dies testate or intestate and adequate provision is not made from the estate for the proper maintenance and support of the deceased's spouse, child or dependant, the court may order such provision as it thinks fit.

Two consequences follow. First, a technically impeccable will can still be varied — validity answers a different question from adequacy. Second, the class is defined by statute: spouse, child or dependant, and for a dependant section 41 imposes an additional requirement that the court have regard to the extent to which the deceased maintained them, their need for that support to continue, and the circumstances of the case.

Timing is strict. Under section 41(8), proceedings must be instituted within nine months after the death unless the court otherwise directs. Section 44 protects a personal representative who has properly distributed part of the estate for the maintenance or support of a dependent spouse or child.

Applying this in a problem question

1. Identify the jurisdiction and the Act before stating any rule.
2. Ask whether a document satisfies section 10, taking the requirements in order and testing the witnessing carefully.
3. If it does not, consider whether section 18 can save it, and identify the evidence of testamentary intention relied on.
4. Check whether marriage, divorce or annulment has operated on the will under section 14 or section 15 since it was executed.
5. If there is no valid will, or only a partial disposition, turn to section 35 and read Schedule 2.
6. Whether or not the will is valid, ask separately whether a spouse, child or dependant has a section 41 claim — and check the nine-month limit before advising on it.

Self-check

• Have I identified which jurisdiction's succession legislation applies before citing a section?
• Have I tested the witnessing requirement, rather than assuming a signed document is a will?
• Have I checked whether marriage or divorce has revoked all or part of the will?
• Have I asked whether family provision is available even though the will is valid?